that the charge of desertion should be removed. Card 670, November, 1894. 1107. Held that a soldier was not within the description of the "third" division of sec. 2 of the act of 1889, of having been "discharged" from service by a court of "competent jurisdiction," who had, as a minor enlisted without consent, been discharged upon habeas corpus by a State court.1 32, 313, May, 1889. * * 1108. A soldier, who enlisted August 16, 1862, for three years, deserted May 16, 1864, was arrested April 20, 1865, and again deserted September 29, 1865. There was thus two charges of desertion standing against him. Under the President's proclamation of March 11th, 1865, all deserters who returned to service within sixty days were pardoned "on condition that they serve the remainder of their original terms of enlistment and in addition thereto a period equal to the time lost by desertion." And a War Department circular of May 29, 1865, provided that when deserters had been arrested during the continuance of the said proclamation they should be entitled to its benefits. In the particular case under consideration the soldier was arrested during the continuance of the proclamation and was therefore pardoned on the conditions named therein. He thus became obliged to serve until July 20, 1866, but as he failed to comply with this condition by deserting September 29, 1865, held that both charges of desertion should be allowed to stand against him. Card 1390, July, 1895. 1109. A soldier, who had successively enlisted in and deserted from two companies of the same volunteer regiment, returned in response to the President's proclamation of March 10, 1863, and served out his first enlistment. Held that the proclamation operated as a pardon for both of his desertions, and that he should be treated as discharged from his second enlistment by his restoration to duty in the first. Card 3447, August, 1897. 1110. The act of May 17, 1886, provided that, where a soldier of the war of the rebellion deserted from one organization and within three months enlisted in another, the charge of desertion, if certain facts were shown, should be removed and a certificate of discharge issued from the organization in which he first served. Held that the purpose of this legislation was to change the status of beneficiaries under it from that of deserters to that of soldiers honorably discharged as of the date of their desertion. Card 2090, March, 1896. 1111. Sec. 3 of the act of March 2, 1889, provides for the removal of a charge of desertion if the following three conditions are fulfilled, viz: 1, That the soldier enlisted again within four months of the desertion; 2, that he served such term faithfully; and 3, that such re-enlistment 1 But see the provision as amended by act of March 2, 1891 (1 Sup. Rev. Sts. 901). was not made for the purpose of securing bounty, etc. A soldier deserted on December 6, 1861, and enlisted on the 13th of the same month in another regiment, deserted from the latter regiment on January 8th, 1863, enlisted on the 15th of that month in a third regiment and was honorably discharged from this enlistment. Each of the last two enlistments was made within four months of the desertion in the preceding enlistment and neither of them was made for the purpose of securing bounty, etc. Held, therefore, that as he served the third enlistment faithfully the charge of desertion pertaining to the second enlistment was properly removed, but that such removal and the consequent issue of an honorable discharge did not affect the fact that he did not serve that enlistment faithfully. Further held, therefore, that the charge of desertion pertaining to the first enlistment could not be removed. Card 3928, March, 1898. 1112. While the first section of the act of March 2, 1889, provides that the charge.of desertion standing against a volunteer soldier who served until May 1, 1865, and had previously served six months shall be removed, etc., there is no good ground for holding that the act as a whole contains any provision that would warrant taking May 1, 1865, as the close of the war, so far as a soldier of the regular army is concerned, or as a date before which a desertion must have occurred to make sec. 3 of the act applicable. Thus where a soldier who had enlisted in the regular army on March 17, 1864, deserted August 20, 1865, and eleven days thereafter enlisted in another regular regiment not for the purpose of bounty, etc., and was honorably discharged therefrom, held that the charge of desertion should be removed. Card 3891, March, 1898. 1113. A volunteer soldier, having enlisted in 1861 for three years, deserted in 1862 and within a month enlisted in the navy for one year, from which enlistment at the expiration thereof he received an honorable discharge. He thus escaped in fact one year's service under his army enlistment. Held that his thus avoiding one year's service was not a gratuity within the meaning of sec. 3 of the act of March 2, 1889, and did not preclude the removal under that section of the charge of desertion. Cards 163, August, 1894; 3090, April, 1897. 1114. By section 13, of the enrollment act of March 3, 1863, a drafted man who failed to report to the board of enrollment was declared "a deserter" and triable therefor by court martial. Held that this section imposed upon him the single duty of reporting to the enrollment board, and to that extent and for that purpose only gave him a military status; that prior to his acceptance or rejection by the board, he was not fully in the military service of the United States, nor a soldier within the ordinary meaning of that term. Where such a drafted man failed to report and subsequently within four months enlisted elsewhere, held upon an application by him to have the charge of desertion removed under the act of March 2, 1889, that not being a soldier in the military service within the meaning of the act at the time he became a "deserter," the same did not apply to his case and that therefore the charge could not be removed. Cards 2041, 2042, May, 1896. 1115. Sec. 7 of the act March 2, 1887, provides that the charge of desertion shall not be removed if the soldier left his command while in arrest or under charges for breach of military duty. Where a soldier deserted in 1865, while in arrest and under charges for breach of military duty, after the expiration of his term of enlistment, it was held that he was still a soldier at the time he deserted and that therefore the section named applied in his case and precluded a removal of the charge of desertion. Card 3099, April, 1897. 1116. Held that a charge of desertion entered against a soldier in a particular term of enlistment is removed by an honorable discharge from such enlistment. Card 2041, May, 1896. 1117. A pardon does not operate retroactively, and cannot therefore "remove a charge" of desertion. L, 395, June, 1886; 42, 406, August, 1890; 43, 36, September, 1890. It does not wipe out the fact that the party did desert, nor can it make the record say that he did not desert. It cannot change facts of history. 58, 446, March, 1893. 1118. A deserter at large from the volunteer army was drafted in 1864, and served as a drafted soldier until mustered out. Held that his status as such drafted soldier was unaffected by the fact that he was in desertion at the time he was drafted; nor was his status as a soldier in desertion affected by his being drafted or by his service as a drafted man. Card 2106, March, 1896. 1119. Ordinarily desertion would be sufficient evidence that service during the term in which it occurred was not honest and faithful, but if in an exceptional case the Secretary of War should decide that it was, notwithstanding the desertion, he would be acting within his discretion under the act of August 1, 1894. The provision in the act of June 16, 1890, that desertion renders service not honest and faithful is limited to the purposes of that act and does not control enlistments under the act of 1894. Cards 2004, January, 1896; 2121, March, 1896; 3530, September, 1897; 3794, January, 1898. 1120. When a soldier deserts from one regiment and enlists in another he may be held to serve out both enlistments or either of them. In the latter case all that need be done is for the Government to aban don the enlistment in one regiment (ordinarily by a discharge therefrom without honor) and recognize the enlistment in the other. transfer is necessary. Card 2115, March, 1896. Νο 1121. There is no law extending amnesty to soldiers who are now deserters from the U. S. army. Card 778, December, 1894. 1122. The restoration of a deserter to duty without trial under par. 128, A. R. (139 of 1901), does not operate as an acquittal, or relieve the deserter from the forfeitures of pay incurred by operation of law under pars. 1513 and 1514, A. R. (1380, 1381 of 1895; 1557, 1558 of 1901.) L, 122, March, 1886; 21, 224, December, 1887. Nor does it operate to remove the charge of desertion and substitute therefor that of absence without leave. Card 4076, April, 1898. DISBURSING OFFICER. 1123. A disbursing officer of the army who has paid out public moneys upon vouchers which prove to have been false or forged is personally responsible to the United States for the amount of the loss; and it is the usage of the Government to hold such an officer so responsible, however innocent of criminality he may be; the fact that he has acted in good faith not affecting his legal liability. Such an officer, further, is not entitled to call upon the Government to prosecute a civil suit against the party chargeable with the fraud, but he may legally himself initiate such a suit if he desires to do so for his own indemnity. XVI, 635, October, 1865; XXVIII, 20, 42, August, 1868; XXXII, 423, March, 1872. 1124. It is in accordance with the usage of the military service, as well as the general practice under existing laws, for an officer of the army charged with the disbursement of public funds to pursue in his own name and representative capacity the proper legal remedies when such funds are illegally appropriated or withheld by third parties. This official function of the officer cannot properly be imposed upon the head of his department. The Secretary of War cannot be required to institute the legal proceedings, nor would his doing so make the claim any more a public claim of the United States than it is as prosecuted by the disbursing officer in his official capacity. Thus advised, in the case of such an officer, a portion of whose public funds were in the possession of a bank, as an authorized public depositary, at a time when the same stopped payment and went into insolvency, that the officer should file and prove his claim before the Register in Bankruptcy and prosecute the collection of the same so far as necessary and practicable; and further that a due and reasonable diligence on his part in pursuing the legal measures open to him for realizing the amount for which he was officially responsible would furnish the strongest support to any application, which he might in future prefer, to be discharged from liability for any loss to the United States resulting from the failure of the depositary. XXXV, 365, May, 1874. 1125. Congress, in appropriating money for the new State, War and Navy Building, has provided that the amounts shall be expended under the direction of the Secretary of War." While the Secretary would thus be authorized to commit the disbursing of the funds employed to any proper person, yet advised, in view of the policy of the law as expressed in Sec. 1153, Rev. Sts., that the Secretary would properly designate as the disbursing agent the engineer officer engaged in superintending the work, especially since-as provided in said section-the duty of disbursing would thus be performed without any charge to the United States. XLI, 283, June, 1878. 1126. Sec. 3620, Rev. Sts., provides that a disbursing officer, having on deposit in a public depositary public moneys intrusted to him for the purpose of disbursement, shall "draw for the same only in favor of the persons to whom payment is made." Where, upon the order of a party to whom the United States was indebted in a certain amount, a disbursing officer made payment of the amount to a firm to which such party was indebted-advised that such payment was clearly in contravention of the statute. 53, 239, April, 1892. 1127. Upon construing Sec. 1766, Rev. Sts., in connection with the original act that of January 25, 1828, entitled "An Act to prevent defalcations on the part of the disbursing agents of the Government"held that such section, though expressed in somewhat general terms, properly applied only to bonded disbursing officers.' 61, 167, August, 1893. 1128. Held that the act of April 20, 1874, c. 117, entitled "An Act to provide for the inspection of the disbursements of appropriations made by officers of the Army," applied only to the inspection of disbursements of monies appropriated by legislation of Congress. 48, 184, July, 1891. 1129. Any officer of the United States "having any public money entrusted to him for disbursement" is a "disbursing officer" within the meaning of Secs. 3620 and 5488, Rev. Sts. Held, therefore, that medical officers entrusted with moneys for disbursement under general orders 116 and 136 A. G. O. 1898, were such disbursing officers. Card 5269, November, 1898. But held that the moneys received by the quartermaster in charge of a U. S. transport from parties travelling thereon, for meals furnished them can be applied, under Sec. 3618, Rev. Sts., and the act of March 3, 1875 (18 Stat., 410), to the purchase of fresh supplies. Card 5048, October, 1898. 1 But see the general provision of the Army Appropriation Act of June 16, 1892, in regard to the withholding of the pay of officers under this section. *See Dig. Dec. Second Comp., vol. 3, p. 324. |